THE CANADIAN CONSTITUTION, FEDERALISM AND THE CONFLICT OF LAWS

Authors

  • JOHN SWAN

Abstract

The author argues that there is a constitutional dimension to each of the three principal issues judicial jurisdiction, recognition and enforcement of foreign judgments, and choice of law that arise in the Conflict of Laws. Provincial claims to assert a jurisdiction over defendants who are not in the province must be limited by the same tests as limit the extra-territorial reach of provincial law under the constitution. There is no justification for giving greater extra-territorial scope to provincial law merely because that scope is set by traditional choice of law rules. If this constitutional standard is met in relation to jurisdiction and choice of law, the problems of the enforcement of the judgments of one province in another are largely avoided, for there can no longer be any possibility of such enforcement, when judged by the standards of the enforcing court, being unfairly prejudicial to the defendant. The consequence of these arguments is that the Supreme Court of Canada has a special role to play in the development of the law. This role permits the complete replacement of conflicts rules, first by constitutional tests to set limits to the reach of provincial law, and second, by the application of substantive rules of provincial law within their proper scope.

Keywords:

Constitutional Law

Downloads

Total Downloads:

Download data is not yet available.

Downloads

Published

1985-06-01

Issue

Section

Legal Commentary